Tag Archives: Constitutional convention

The Excellent Electoral College

05 Friday Apr 2019

Posted by in Constitution, Democracy

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So lacking is the average American’s knowledge of civics that they often react in shock to the suggestion that the United States was never intended to be a pure democracy. But unchecked democracy is not a system that can be counted upon to maintain stability, something the founders knew when they fashioned the country as a constitutional republic. This point bears emphasis given the recent calls to abolish the Electoral College (EC) by such Democrat luminaries as Elizabeth Warren and Beto O’Rourke. Others, like Socialist-cum-Democrat Bernie Sanders, say they want to “assess” the EC.

Jon Gabriel describes the EC as one of a series of stabilizing checks and balances embedded in our system of government. It served the purpose of balancing interests across diverse regional economies and sub-cultures:

“By distributing our presidential choice among 51 individual elections, nominees must appeal to a wide variety of voters with a wide variety of interests. Farmers in Wisconsin are important, as are retirees in Florida, factory workers in Pennsylvania, and shopkeepers in Arizona. White Evangelicals need to be courted in Charlotte, as do Latino Catholics in Mesa.

If the Electoral College were abandoned, party frontrunners would camp out exclusively in urban areas. The pancake breakfasts in Des Moines and Denver would be replaced with mammoth rallies in Los Angeles and New York City.”

So diverse were these interests in the late 1700s that it’s reasonable to assume that the Constitutional Convention would have failed without the creation of the EC. Today, no less, our country would be unlikely to survive the EC’s elimination. Why, for example, would voters in Missouri wish to allow the preferences of east and west coast voters to dominate federal policy-making?

Gabriel provides some interesting history giving emphasis to the notion of a tyranny of the majority under pure democracy:

“The world’s first democracy was ancient Athens, which allowed around 30,000 free adult male citizens to choose their leaders. They made up less than 15 percent of the population, but it was the most egalitarian political innovation to date.

Athen’s unbridled democracy, however, led to the very extremes that sowed its decline and defeat at the hands of enemies. This note from Edward Conway on Quora is instructive (his is the third commentary at the link; most of the others are helpful, but his is most succinct):

“… ancient Athenian democracy was purely a matter of votes: if you wanted to win a court case, or pass a law, or tax a group, or go to war, or massacre a large number of people, the only check was whether you could convince a majority of the citizens to vote in your favor. While there were means of checking individual people (see: Ostracon), this did nothing to check the power of the crowds, as it only removed one focus of this power.

Thus Athenian democracy never moved beyond the initial ‘UNLIMITED POWER!’ stage. Anyone who could convince the crowd to follow them had unchecked authority until they lost control of the crowd.

This led, predictably, to excesses: ‘Let’s attack Sparta!’, ‘Let’s invade Sicily!’, ‘Let’s ostracize our best general!’, etc.“

It’s interesting that the Athenian military was staffed by plebeians who found imperialistic actions to be profitable. Naturally, they voted to devote more resources to military incursions… until they were defeated. Allowing a large faction to vote on their own pay, and the taxes on others necessary to pay for it, can be a glaring defect of democracy. We see manifestations of the same phenomenon today in congressional pay raises and expansion of federal benefits for large segments of the population who pay no taxes.

Back to Gabriel:

As the saying goes, democracy is four wolves and a lamb voting on what to have for lunch. The Founders looked to Athens less as a political model than an object lesson in what not to do.

James Madison said that democracies are ‘incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.’

The EC was a stroke of political genius: It allowed the delegates at the Constitutional Convention to reach a consensus, something that would probably be just as difficult to accomplish today as it was then. The EC transforms one federal election into 51 local elections, reducing the feasibility of tampering by the party in power at the federal level. It also reduces the incentive for electoral fraud in a national race because a greater margin of victory within a state cannot gain the votes of additional electors.

The noise regarding the EC is coming from just one side of the political aisle: Donald Trump’s electoral victory in 2016, and his reasonably good prospects for reelection in 2020, have inflamed the passions of Democrats, who are now grasping at any and all ways in which they might tilt the playing field their way. Relative to electoral votes, popular votes are heavily concentrated in the coastal “blue” states. Such a change in the rules of the game would certainly stand to benefit Democrats. Therefore, the debate looks suspiciously like it has nothing to do with “good governance” and electoral integrity, and everything to do with raw politics.

It’s useful to remember that the EC was an essential incentive for gaining the buy-in of smaller states to join the Union. It remains vitally important to states whose interests would likely be neglected if presidential politics was dominated by the coastal states. Fortunately, the founders invested the EC with durability: rescinding it would require a constitutional amendment. That could happen if two-thirds of the state legislatures agree to convene a constitutional convention. Or, it could be proposed by a two-thirds majority in both houses of Congress, then ratified by three-fourths of the state legislatures. Ain’t gonna happen.

 

National Endowment for Rich Farts

08 Wednesday Mar 2017

Posted by in Big Government, Charity, Subsidies

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Wailing has begun over the possible defunding and demise of the National Endowment for the Arts (NEA). How could those cretins propose to eliminate an institution so very critical to promoting artistic expression? If that’s your reaction, you haven’t thought much about the main beneficiaries of federal sinkholes like the NEA. Granted, at $146 million annually, it is not a major federal budget item, but I’d rather not stoop to defend a lousy program because it’s small. So what’s my beef with the NEA, you ask? Read on.

First, any implication that the NEA is the lifeblood of the arts is laughable. No, the arts won’t die if federal funding is denied. Jeff Jacoby quotes figures suggesting that grants from the NEA represented less than 1% of all support for the arts and culture in the U.S. in 2015. Great art was created prior to the establishment of the NEA in 1965. Without the NEA, such bungles as “Piss Christ” would have met with less acclaim. As such a minor funding vehicle, eliminating the NEA won’t make much difference to artists, but it will end a subsidy for wealthy patrons, who can and do provide support for worthy projects, but also derive essentially private benefits from the federal arts spigot.

A large share of NEA grant money goes to non-profit organizations that are already subsidized to the extent that they are not taxed. (Let’s face it: the term “non-profit” itself is often a term of art.) Large arts organizations, which receive a significant share of NEA grants, often have highly-paid administrators and sumptuous facilities. Contributions to those organizations are tax-deductible for the donors. And few of those organizations provide art to the public for free or at a discount. Indeed, as noted at the last link, they often charge significant prices for attendance, and their audiences include a disproportionate percentage of high-income patrons.

Lawrence Reed argues persuasively that government need not subsidize the arts in an article in his series on the Cliches of Progressivism. Here are the highlights:

  • “Government funding of the arts… carries with it all the downsides of dependence on politics.
  • Claims that arts spending is magically “multiplied” are specious and usually self-serving, and never look at alternative uses of the same money.
  • Culture arises naturally and spontaneously among people who chose to interact with each other. Art is part of that, but it also competes with all sorts of other things people choose to do with their time and money.
  • If art is truly important, then the last thing we should want to do is politicize it or divert it toward those things that people with power think we should see or hear.”

Reed’s comment regarding “multipliers” might need some explanation in this context. The NEA’s defenders often claim that each dollar of NEA grant money results in multiple additional grants from other sources, but there is absolutely no evidence to support this claim except for a requirement that NEA grants be matched at the state level (not to mention a requirement for a state-level arts agency). Obviously, that represents another cost to taxpayers. It is quite possible, in fact, that the NEA and matching state grants act as substitutes for, and depress, private arts giving. See this piece in Forbes for more background. This NBER research utilized a large panel data set on individual charities and found only mixed support for the proposition that government grants encourage private contributions. In fact, the estimated effect was ambiguous for individual categories of charitable giving (which did not explicitly address the arts as a category). In any case, a positive cross-sectional effect of government grants on private giving for individual charities is consistent with a negative effect on other charities that do not receive public grants.

In a 20-year-old report from the Heritage Foundation, Stuart Butler offered a list of reasons to defund the NEA, which have held up well. Here, I provide eight that seem relevant:

  1. The arts will have more than enough support without the NEA: See above.
  2. Welfare for cultural elitists: See above. NEA grants fund a number of big and very elite organizations, but they would have you believe that it’s a veritable welfare program for the arts. That is a huge distortion. There is no question that the distribution of patrons of these organizations skews to the wealthy.
  3. Discourages charitable gifts to the arts: See above. Is the award of an NEA grant the equivalent of establishing a credit record to an arts organization? This might hold up for a few small organizations with projects the NEA has funded, but again, the support for this proposition is anecdotal and self-serving, and the numbers are small. And is there an implied stain on the legitimacy of any organization unable to win such a grant?
  4. Lowers the quality of American art: Committee decisions and central planning are not conducive to the spirit of creativity. Public institutions are often guided by political agendas, and government-sanctioned art stands in sharp contradiction to the ideal of free expression. Butler quotes Ralph Waldo Emerson: “Beauty will not come at the call of the legislature…. It will come, as always, unannounced, and spring up between the feet of brave and earnest men.”
  5. Funds pornography: this is not my hot button… it’s an issue only to the extent that public funds should not be used for purposes only flimsily in the public interest that many taxpayers find morally repugnant.
  6. Promotes politically correct art: See #4 above. The merits are then judged on the basis of criteria like race, ethnicity, and gender identity, not the quality of the art itself.
  7. Wastes resources: Butler offers a few examples of the waste at the NEA, a shortcoming common to all bureaucracies. The NEA funds organizations that behave as non-profit cronyists, engaging in lobbying efforts for more support. Butler also cites evidence that recipients of government grants in the UK hire more administrative staff than non-recipients, and tend not to reduce ticket prices.
  8. Funding the NEA disturbs the U.S. tradition of limited government: I suppose this goes without saying….

The federal government in the U.S. was granted a set of enumerated powers in the Constitution, and promoting the arts was not one of them. It wasn’t as if the subject didn’t come up at the Constitutional Convention. It did, and it was voted down. Today, entrenched interests at organizations like the NEA and National Public Radio distort the character of the constituencies they serve. In reality, those constituencies  are heavily concentrated among the cultural and economic elite. The NEA and NPR also promote the fiction that they are all that stand between access to the arts and culture and a bleak, artless dystopia. Give them credit for creating a fantasy about which the political left readily suspends disbelief.

Hamburger Nation: An Administrative Nightmare

04 Friday Mar 2016

Posted by in Big Government, Judicial Branch, Legislative Branch, Regulation

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By what authority do unelected bureaucrats in administrative agencies increasingly make laws, enforce those laws and adjudicate violations? The fact that all of these activities take place within the executive branch of government appears to be an obvious contradiction of the separation of powers required by the first three articles of the Constitution, the principle of “Rule By Consent” of the governed, and protections of individual liberty. In a strong sense, the regulatory apparatus has grown so unwieldy that the powers routinely exercised by administrative agencies today seem beyond even the reach of elected executives. The rules promulgated by this “fourth branch” of government are essentially extralegal, a point discussed at length in Philip Hamburger’s “Is Administrative Law Unlawful“. He has also explained these issues at the Volokh Conspiracy blog in “Extralegal power, delegation, and necessity“, and “The Constitution’s repudiation of extralegal power“.

Hamburger examines the assertion that rule-making must be delegated by Congress to administrative agencies because legislation cannot reasonably be expected to address the many details and complexities encountered in the implementation of new laws. Yet this is a delegation of legislative power. Once delegated, this power has a way of metastasizing at the whim of agency apparatchiks, if not at the direction of the chief executive. If you should want to protest an administrative ruling, your first stop will not be a normal court of law, but an administrative review board or a court run by the agency itself! You’ll be well advised to hire an administrative attorney to represent you. Eventually, and at greater expense, an adverse decision can be appealed to the judicial branch proper.

This adds up to a dangerous lack of accountability and power. Marginal Revolution points out that critics of Hamburger’s book overlook the potential for harm that could be done by a “vindictive” president. But we should not lose sight of the fact that bureaucrats themselves, at any level, can be vindictive, as the IRS targeting scandal has shown. But that is only one motive for abuse of power; another motive may be more pervasive: the ability to reward those in a position to promote the self-interests of those who populate the administrative state. These are dangers that are endemic to big government. In a post entitled “Are Government Regulators More Virtuous than Everyone Else” (No!), Ivan Carrino highlights the weakness of arguments like those made by George Akerlof and Robert Shiller in “Phishing For Phools“, who call for greater government regulation on the grounds that consumers are vulnerable to manipulation by businesses. Carrino says:

“One can’t help but notice the central contradiction in this analysis. On the one hand, it is assumed that markets fail because of ‘normal human weakness.’ On the other hand, it is assumed that regulation, which must necessarily be implemented by human beings with equal or greater ‘weaknesses,’ will somehow solve the problem.

Akerlof and Shiller simultaneously demonize human beings who operate in the private sector while idealizing human beings who operate in the public sector.“

Glenn Reynolds has been a prominent critic of the administrative state. As a consequence of the vast and growing body of regulatory rules, it’s become increasingly difficult for individuals, acting on their own or as businesspeople, to know whether they are in acting in violation of administrative law. Reynolds discusses regulatory crime and over-criminalization in “You May Be Breaking The Law Right Now“, and in his great paper “Ham Sandwich Nation: Due Process When Everything is a Crime” (free download).

Hamburger’s main position is that law should be made by elected representatives, not by bureaucrats who lack direct accountability to voters. Ilya Somin believes that with time, Hamburger will have great influence on legal theorists in this regard. He compares Hamburger’s insights on administrative law to Richard Epstein’s work on takings. Epstein insisted that “almost all regulations that restrict property rights should be considered ‘takings’ that require compensation under the Fifth Amendment.” Somin notes that Epstein’s position, despite harsh criticism from certain quarters, has influenced legal thinking in a dramatic way over the years.

What’s to be done? Can a line reasonably be drawn between constitutional legislative power and delegated rule-making authority? Somin is skeptical that absolute restrictions on lawmaking by the administrative state are practical, in the sense that there will always be details that cannot be addressed in enabling legislation. Others have suggested practical paths forward: Joseph Postell attempts to give a roadmap in “From Administrative State to Constitutional Government“. A recent Glenn Reynolds op-ed, “Blow Up The Administrative State“, gives a qualified defense of Texas Governor Greg Abbot’s proposed amendments to the Constitution. Among other things, Abbot proposes to:

“–Prohibit administrative agencies … from creating federal law.
  –Prohibit administrative agencies … from preempting state law.
  –Give state officials the power to sue in federal court when … officials overstep their bounds.
  –Allow a two-thirds majority of the states to override a federal law or regulation.”

I would add that administrative review and adjudication should be independent of the agencies themselves. Also, Representative Mia Love (R-UT) has proposed legislation that would restrict Congress to bills focused on points directly related to a single issue (i.e., no omnibus bills), which would help to check the growth of the administrative state.

All of these measures seem consistent with Hamburger’s views. Reynolds is fully cognizant of the dangers of a constitutional convention. Nevertheless, he recognizes that Abbot’s proposals would impose harder limits on the size of government, and defends them in colorful fashion:

“A smaller government would mean fewer phony-baloney jobs for college graduates with few marketable skills but demonstrated political loyalty. It would mean fewer opportunities for tax dollars to be directed to people and entities with close ties to people in power. It would mean less ability to engage in social engineering and ‘nudges’ aimed at what are all-too-often seen as those dumb rubes in flyover country. The smaller the government, the fewer the opportunities for graft and self-aggrandizement — and graft and self-aggrandizement are what our political class is all about.“

For further reading, Michael Ramsey at The Originalism Blog posts links to several other essays by Hamburger at The Volokh Conspiracy, where he acted as a guest-blogger.

 

 

 

Nullifying The Federal Blob

17 Tuesday Feb 2015

Posted by in Uncategorized

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When must a state acquiesce to the demands of the federal government? The question is not as straightforward as many believe. The U.S. Constitution is fairly explicit in “enumerating” the federal government’s powers, which at least tells us that the answer must be “sometimes,” not simply always or never. Powers not specifically granted to the federal  government are generally reserved by the states. This is the principle of federalism, but in practice it leaves plenty of room for disagreement. The federal government has grown enormously in size and in the scope of its activities. It seems inevitable that tensions will arise over specific questions about the limits of federal authority. And over time, in response to challenges, the courts have interpreted some of the enumerated powers more expansively. There is an ongoing debate over what avenues, in addition to the courts, states may follow in challenging federal power. Some have framed it as a debate over state “nullification” of specific federal laws versus a constitutional convention to establish clearer limits on the reach of federal power.

Recently, nullification has been all the rage, as this article in The Hill makes clear. So-called “mandates” often require states to enforce federal laws, which is likely to provoke some objections. And major pieces of federal legislation have become so complex that details must be sorted out by the administrative agencies in charge of implementation. This involves lots of rule-making and delegation of authority that has frequently imposed burdens on state governments. States are increasingly refusing to cooperate. From The Hill:

“The legislative onslaught, which includes bills targeting federal restrictions on firearms, experimental treatments and hemp, reflects growing discord between the states and Washington, state officials say. …

Friction between the states and the federal government dates back to the nation’s earliest days. But there has been an explosion of bills in the last year, according to the Los Angeles-based Tenth Amendment Center, which advocates for the state use of nullification to tamp down on overzealous regulation.”

Later in the same article, the author discusses an effort to organize a constitutional convention:

“… conservatives are pushing for states to invoke Article 5 of the Constitution and hold a ‘convention of states’ to restrict the power and jurisdiction of the federal government. The group Citizens for Self-Government is leading the charge, and three states — Alaska, Georgia and Florida — have already passed resolutions calling for the convention. Another 26 states are considering legislation this year, according to the group’s president, Mark Meckler. It would take 34 states to call a convention. At the convention, Meckler said the states would work to pass amendments that impose fiscal restraints, regulatory restrictions and term limits on federal officials, including members of the Supreme Court. ‘We’ll have [Article 5] applications pending in 41 states within the next few weeks,’ he said. ‘The goal is to hold a convention in 2016.’”

Libertarians are split on the issues of nullification and a constitutional convention. The latter  is addressed by A. Barton Hinkle in Reason, who questions the necessity of a convention and sees certain risks in the effort, such as new provisions that could “backfire”, the possibility of a “runaway convention”, and efforts to riddle the Constitution with “primary laws,” rather than merely improving it as a framework for governing how we are governed.

As for nullification, Robert Levy, board chairman of The CATO Institute, distinguishes between situations in which a state is asked to enforce a federal law and those involving federal enforcement of a law deemed to be unconstitutional by a state. He asserts that states cannot resolve the latter type of dispute via nullification:

“Fans of nullification count on the states to check federal tyranny. But sometimes it cuts the other way; states are also tyrannical. Indeed, if state and local governments could invalidate federal law, Virginia would have continued its ban on inter-racial marriages; Texas might still be jailing gay people for consensual sex; and constructive gun bans would remain in effect in Chicago and elsewhere.

… If a state deems a federal law to be unconstitutional, what’s the proper remedy? The answer is straightforward. Because the Supreme Court is the ultimate authority, the remedy is a lawsuit challenging the constitutionality of the suspect federal regulation or statute.”

Not surprisingly, the Tenth Amendment Center strongly disagrees with the limits on nullification described by Levy:

“Levy’s entire argument rests on the idea that the federal courts possess the sole and final authority to determine the constitutionality of an act. … Levy never addresses the fundamental question facing those who oppose nullification: how does one reconcile the undeniable fact that the state ratifying conventions adopted the Constitution with the understanding that it was creating a general government with specific, limited powers and the idea that a branch of that very same federal government has the final say on the extent of its own powers? Quite simply, you can’t.”

These recent efforts to reign in the federal government are exciting. I am watching the progress of the Article 5 convention effort with great interest. I am not sure I buy into Levy’s arguments against nullification because checks on power should cut both ways: the Constitution allows states to retain powers not specifically granted to the federal government, so the states should guard those powers jealously. It matters not whether the question involves state enforcement of a federal law or a federal law that violates states rights. Likewise, powers specifically granted to the federal government should serve as a check on “state-level tyranny”. Again, that leaves plenty of room for disagreement before the courts.